The state of access did not improve dramatically during the past year, but
there were some important developments in case law and the Supreme Court’s
ruling in National
Archives and Records Administration v. Favish, 541 U.S. 157 (2004), had
several useful passages that helped to soften the blow when the Court embraced
the concept of survivor privacy in the context of the Freedom of Information
The expansion of various undefined concepts like “sensitive but unclassified”
or “sensitive homeland security information” continued, and although the Justice
Department protests that these categories of information do not form the basis
for withholding records under FOIA, to requesters it seems obvious that agencies
are not likely to disclose such information short of a court order.
Aside from the affirmation of survivor privacy by the Supreme Court, privacy
took a back seat to security issues. However, there are signs that the two
may intertwine with each other at some point to deny access to such
traditionally public records as names and office addresses of federal employees.
In the Supreme Court
The Supreme Court decided one FOIA case last term, one case with access
implications, and one Privacy Act case. Although none of them could be
characterized as victories for requesters, the Court’s decision in National
Archives and Records Administration v. Favish did provide some potential help to
The case was a somewhat pointless argument over whether a handful of crime
scene photos pertaining to the Vince Foster suicide investigation should be
disclosed. While the D.C. Circuit in Accuracy in Media v. National Park
Service, 194 F.3d 120 (D.C. Cir. 1999), had ruled that the photos could be
withheld under the law enforcement records privacy exemption (Exemption 7(C)),
the 9th Circuit, in Favish v. Office of Independent Counsel, 217 F.3d 1168
(9th Cir. 2000), had ruled that several of the photos were not graphic enough to
require protection and, further, that Favish had articulated a legitimate public
interest in disclosure by challenging the conclusions of the government’s
investigation of Foster’s death.
The Supreme Court, relying largely on religious and social traditions
concerning family control of matters involving deceased family members,
concluded that Foster’s family members had a right of privacy independent of
Foster himself and that that right provided the basis for withholding the
But the Court actually gave a bit when it discussed the concept of what
constituted a public interest. As part of the flurry of rigid
interpretations that followed the Supreme Court’s 1989 decision in Department of Justice v. Reporters Committee, the D.C. Circuit ruled, in SafeCard Services v.
SEC, 926 F.2d 1197 (D.C. Cir. 1991), that all personal information
contained in law enforcement records were per se exempt unless the requester
could show evidence of wrongdoing on the part of the agency.
Although the Supreme Court did not approach its discussion of the public
interest standard in terms of the SafeCard standard, its conclusion clearly
casts serious doubt on that standard. The Court found that a requester
articulated a legitimate public interest adequate to outweigh a privacy interest
when he or she provided evidence sufficient to show that a reasonable person
would suspect government wrongdoing. While the Court ruled that Favish had
not met this standard, this new test is significantly more generous than the
SafeCard standard, which required the requester to provide proof of wrongdoing
After Favish, the standard is now a “reasonable person” test, which requires
a sufficient degree of evidence, but does not require proof in advance.
There were several important decisions this year involving the parameters of
protection offered by various legal privileges. These privileges –
deliberative process privilege, attorney work-product privilege, and executive
privilege – afford protection under Exemption 5 of the FOIA. Several
courts put significant limitations on the government’s claims this past
The Supreme Court agreed to rule on whether Judicial Watch and the Sierra Club could force the government to review records from the Cheney energy task force and respond to
discovery requests. The two public interest groups had sued, claiming the
task force was subject to the disclosure requirements of the Federal Advisory
Committee Act. The district court and the D.C. Circuit had both ruled
that, to determine if the task force was subject to FACA, further discovery
would need to take place.
The courts ordered limited discovery and told the government to provide a
privilege log which would describe why records were exempt. The government
refused to do so, claiming that such a process was unconstitutionally
The Supreme Court, in Cheney v. United States District Court, 124 S.Ct. 2576 (2004),
partially agreed, sending the case back to the D.C. Circuit to look for
alternative methods for resolving the case that would be less onerous for the
In Doe v. Chao, 540 U.S. 614 (2004), the Court heard its first Privacy Act
case, one involving the degree of proof a plaintiff had to show to be eligible
for $1,000 in statutory damages. Most courts that had dealt with the
provision previously had found that if a plaintiff showed a violation of the
statute and, further, that the violation had had an adverse effect on the
individual, then that person was entitled to at least $1,000 in statutory
In an earlier decision in the Doe case, however, the 4th Circuit had ruled
that a plaintiff must prove actual damages and, at that time, he or she would be
entitled to at least $1,000. A closely divided Supreme Court agreed with
the 4th Circuit’s interpretation.
One of the most fascinating cases involving Supreme Court litigation did not
result in a Supreme Court decision.
As part of its preparation for a lawsuit against gun manufacturers, the City
of Chicago asked the Bureau of Alcohol, Tobacco and Firearms to disclose
information about gun-sale traces. The agency claimed the information was
protected under various parts of the law enforcement exemption, but the 7th
Circuit disagreed, ordering the agency to disclose the information. The
case then went to the Supreme Court.
After the issues had been briefed, the government informed the Court that
Congress had passed legislation prohibiting the BATF from using appropriated
funds to respond to the request. As a result, the Court sent the case back
to the 7th Circuit for reconsideration.
In City of Chicago v. Bureau of Alcohol, Tobacco and Firearms, 384 F.3d 429
(7th Cir. 2004), the 7th Circuit ruled that the funding restriction did not
prevent responding to the request because Chicago had committed to paying all
the costs. However, Congress then passed another law making the agency
“immune from legal process.”
Lower court decisions
In Judicial Watch and Natural Resources Defense Council v. Department of
Energy, 310 F.Supp. 2d 271 (D.D.C. 2004), a case involving access to agency
records created during the existence of the Cheney energy task force, Judge Paul
Friedman made several rulings that put the government in a significant bind in
terms of protecting the records pertaining to the task force.
First, Friedman concluded that agency staff from the Department of Energy and
the Department of Interior, as well as other agencies, detailed to work for the
task force remained employees of their respective agencies, which, in turn,
meant that any records they created while working for the task force were
records of their respective agencies and must be produced under FOIA unless they
Friedman next ruled that the agencies could not claim the deliberative
process privilege for records created for use by the task force. To fall
under Exemption 5, records must be “inter- or intraagency” records – records
either shared within an agency or between agencies. Friedman concluded
that, since the task force was not an agency, records submitted to it could not
be claimed under the deliberative process privilege. He indicated that
such records potentially could be covered by the constitutionally based
executive privilege, but the administration has yet to make such a claim.
The D.C. Circuit also ruled in a case whose facts, to some extent, were the
flip side of those with which Friedman was concerned.
In Judicial Watch v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004),
the court overturned a district court ruling that all records that were part of
the process of considering whether or not to issue a presidential pardon were
protected from disclosure by the executive privilege.
The district court had concluded that, since pardons were constitutionally
committed to the executive, all records pertaining to pardons must come within
the executive privilege. The D.C. Circuit found, however, that only
records that were prepared or used by presidential staff qualified for the
executive privilege. Records created by Justice Department staff that were
never sent to the White House did not qualify for executive privilege.
The court recognized, however, that such records could qualify for the
deliberative process privilege, although the government had not claimed that
Judge Emmet Sullivan cut back on the coverage of the attorney work-product
privilege in his ruling in Judicial Watch v. Department of Justice, 337
F.Supp.2d 183 (D.D.C. 2004). He had earlier found that some records
qualified for protection as attorney work-product. But when Judicial Watch
came back and argued that the Justice Department had not reviewed the records
for segregability, Sullivan sided with the plaintiff and ordered the agency to
disclose factual portions of the records.
However, in the D.C. Circuit both facts and opinions are protected by the
attorney work-product privilege. As a result, Sullivan apparently
concluded that the segregability requirement in FOIA trumped the broad
protections of attorney work-product.
In National Council of La Raza v. Department of Justice, 337 F.Supp 2d 524
(D.SDNY, 2004), the court found that a Justice Department memo changing policy
concerning the detention of individuals on immigration charges by local law
enforcement officials must be made public because the attorney general and
several high-ranking officials had publicly discussed its conclusions in
Although the memo itself had never been disclosed, the court ruled that the
extent of the detail disclosed constituted a waiver of the deliberative process
The issue of attorney’s fees continued to be an important issue in
In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health
& Human Resources, 532 U.S. 598 (2001), the Supreme Court ruled that to
prevail in a lawsuit for purposes of an award of attorney’s fees required that
the court issue an order in favor of the plaintiff. Before Buckhannon,
plaintiffs only needed to show that the litigation caused the agency to comply
and did not require a court order. The D.C. Circuit ruled that Buckhannon
applied to FOIA in Oil, Chemical & Atomic Workers Union v. Dept. of Energy,
288 F.3d 452 (D.C. Cir. 2002).
Last year, in AutoAlliance International v. Customs Service, 300 F.Supp.2d
509 (D.ED Mich 2004), a court found the plaintiff had prevailed when the court
ordered the agency to again review its documents, resulting in further
In Piper v. Dept. of Justice, 339 F.Supp. 2d 13 (D.D.C. 2004), the court
granted attorney’s fees after having reduced the time for responding to the
request from four to two years, and having rejected agency claims pertaining to
In Edmonds v. FBI, 272 F.Supp.2d 35 (D.D.C. 2004), the court declined to
grant an award, finding that Edmonds had prevailed only on her request for
expedited processing, but had lost on all exemption claims.
Challenges to denials of expedited processing continue to result in
litigation, particularly in cases brought by the Electronic Privacy Information
Center. However, at the end of the year, EPIC lost its suit to force the
Defense Department to expedite the processing of its request on Verity K2
Enterprise software, used for data-mining.
The court, in EPIC v. Department of Defense, 2004 WL 2848316 (D.D.C.
2004), found EPIC had not shown that Verity K2 was a subject of media
interest, only that data-mining generally had attracted media attention.
News media cases
Several suits involving the news media had positive outcomes for the
In New York Times v. Department of Labor, 540 F.Supp.2d 394 (D.S.D.N.Y.,
2004), the court ruled that Exemption 4, which protects confidential business
information, did not apply to records of worker illness and injury records
because those records had to be publicly posted on the job site.
In Chang v. Department of the Navy, 314 F.Supp.2d 35 (D.D.C., 2004), the
court ruled that the Navy did not violate the Privacy Act when it disclosed
information about Daniel Chang’s disciplinary proceedings after the ship he
commanded was involved in a collision with a freighter. The court found
the information was of public interest and was required to be disclosed under
There were no clear themes in state litigation on access issues, but several
decisions are worth noting.
One of the most interesting, because it could have long-term implications, is
a Connecticut case, Director, Department of Information Technology, Town of
Greenwich v. FOI Commission. Greenwich denied access to its Geographic
Information Systems maps of the town because disclosure would allow people to
learn more about the homes of rich celebrity residents, creating possible
security risks. The court ruled the GIS maps were created with public money
using public information and could not be withheld. The case is now on
In New York Times v. City of New York Fire Department, the court found that
oral histories done by firemen involved in 9/11 rescue operations could not be
withheld under the privacy exemption because they did not contain personal
information subject to protection.
In Judicial Watch v. Vermont, a trial court found that former Gov. Howard
Dean did not have the authority to determine when the public would have access
to his gubernatorial records. Instead, the court indicated the records would
have to be disclosed based on the provisions of the state’s open records act.
The state’s appeal of the ruling was heard by the Vermont
Supreme Court beginning March 14.
In Cable News Network v. Florida Department of State, Division of Elections, a trial court ruled that records pertaining to purges of alleged ineligible
voters were not protected by the privacy exemption.
In City of Frederick v. Randall Family Trust, the Maryland Court of Special
Appeals ruled that information about town residents who were clients of a local
prostitute must be disclosed.
The attorneys general of two states – Texas and Kentucky – ruled that medical
privacy regulations issued by the federal Department of Health and Human
Services pursuant to the Health Insurance Portability and Accountability Act did
not prevent law enforcement from disclosing information about incidents
involving injuries or medical treatment.
In Breighner v. Michigan High School Athletic Association, the Michigan
Supreme Court ruled that the association was not an agency, even though it had
been an agency before having its identity changed to nonprofit status by
the Legislature. Although it was referred to as a nonprofit, its only
function was to arrange high school athletic competitions and the vast majority
of its funding came from payments from member public high schools.
There were more bright spots in the case law this past year than in many
typical years. But new restrictions for safeguarding various categories of
sensitive information, if implemented aggressively, will result in large
categories of records that could be even less available than if they had been
The short-term fate of access will depend in large part on whether the
government remains preoccupied with terrorism. If security matters remain
the focus of government, access will certainly decline.
Harry Hammitt is the editor and publisher of Access Reports, a biweekly
journal of news and analysis of FOI jurisprudence.